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What would happen if a Supreme Court justice dies or steps down

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  • The possibility of a Supreme Court vacancy arriving in an election year is particularly tense after what happened in 2016.
  • There are four justices aged 70 or older, and two have had health scares recently.
  • President Barack Obama was unable to even get a floor vote for his pick in 2016 after Justice Antonin Scalia died, with Republican Senate Maj. Leader Mitch McConnell thwarting the process.
  • McConnell has made clear he will not follow that precedent this time, should a vacancy arise.
  • Democrats have few tools at their disposal to prevent President Donald Trump and McConnell from installing another conservative on the bench.
  • Visit Business Insider’s homepage for more stories.

It’s an election year, and two Supreme Court justices have recently had health scares. 

Plotting out how a replacement would arrive is a morbid endeavor, but because of the lifetime appointments to the bench and the debacle of President Barack Obama failing to replace the late Justice Antonin Scalia in 2016, the stakes are high enough that both sides of the aisle have put a lot of thought into various outcomes.

Right now, the oldest justices are:

  • Ruth Bader Ginsburg, 87
  • Stephen Breyer, 81
  • Clarence Thomas, 72
  • Samuel Alito, 70

Ginsburg was just discharged from the hospital on Thursday after coming down with an infection stemming from an operation to treat a cancerous tumor on her pancreas.

It was also revealed recently that Chief Justice John Roberts was hospitalized with a head injury last month after a fall.

Should any of the justices perish or become unable to fulfill their duties on the bench, it is almost certain that President Donald Trump would quickly pick a replacement and the Republican controlled Senate would move to confirm that pick, based on past statements from the White House and Senate leadership.

The tense standoff from the last vacancy during an election year also casts as shadow over the process.

Back in 2016, Scalia’s death led to an opening on the bench that Senate Majority Leader Mitch McConnell kept vacant until after the election.

Merrick Garland, President Barack Obama’s moderate pick to replace Scalia, was left stranded in the process.

Yet McConnell has been straightforward in indicating he would not follow the same standard of holding off until the American people decide the election, were a similar scenario to arrive in 2020.

A spokesman for McConnell directed Insider to the majority leader’s previous comments on what he would do about a vacancy in an election year, such as “If you’re asking me a hypothetical … we would fill it.”

McConnell justified the apparent incongruity by arguing that “you’d have to go back to the 1880s to find the last time a vacancy on the Supreme Court occurring during a presidential election year was confirmed by a Senate of a different party than the President. That was the situation in 2016. That would not be the situation in 2020.”

Under normal circumstances, the process follows longstanding procedures under the Judiciary Act of 1869:

  • Once there’s a vacancy, the president can nominate someone to to bench.
  • If the Senate is in recess, the president’s pick can cruise right through to taking their oath and join the court relatively quickly, but only on a temporary basis until a confirmation vote by the end of the next Congress. This route is less likely because:
      • Democrats could try to call for a “pro forma” session, meaning Congress isn’t really in recess.
      • Recess appointments still have to be confirmed by the end of the next Congress, so Trump and McConnell having the votes for a regular, permanent replacement while there are still votes for a GOP majority would be the preferred option.
  • If the Senate is in normal session, they will hold an executive session and hearings on the nominee, a process that can take two to three months if there are minimal delays, including background checks, the nominee meeting with senators individually,y and then finally the questioning in hearings preceding the final vote to confirm.
  • Once the Senate confirms the nominee or the president makes the less common move to make a recess appointment, the nominee is installed as a Supreme Court justice for life.

Given the outrage from Democrats over McConnell blocking Obama’s pick in 2016, the dynamics get a little more complicated.

With Democrats in the majority and Senate rules no longer offering a filibuster protection for the minority party when it comes to Supreme Court nominations, there are minimal options when it comes to impeding McConnell.

McConnell would have two to three months to orchestrate a Supreme Court confirmation, which could still be possible after the election during the so-called lame duck session before the new Congress — and potentially a new president — come to power in January.

There would first be that 30 to 45 day background check period.  About a week later, there would be a meeting among lawmakers for an “executive session,” which has its own rules of procedure.

Jim Manley, who served as Democratic Senate Maj. Leader Harry Reid’s senior communications adviser, told Insider that Democrats could try all sorts of tricks via motions and other procedural measures to gum up that phase of the process. 

However, McConnell’s majority gives him the power to essentially rewrite the Senate rules as long as he has the votes, giving him a trump card over any efforts at interference from Democrats.

“McConnell is singularly responsible for breaking the Senate,” Manley said, adding there is “zero question” in his mind that he would deploy whatever maneuvers necessary to get a conservative on the bench.

McConnell has been unequivocal in his desire to get a justice confirmed as soon as possible while Trump is in office, so if something tragic were to happen to one of the justices, the ensuing process of hearings would move tensely but swiftly.

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